No grounds for confusion over positions of IPC and POCSO over sex with wife between 15 and 18 years

By Dr. Pravin Patkar, Prerana ATC

Some people have a misapprehension that there is an unresolved conflict between the Indian Penal Code (IPC) and the Protection of Children From Sexual Offences Act- 2012 (POCSO), w.r.t sex with one’s wife who is between the age of 15 and 18 years. The news item stated below informs us that Kailash Satyarthi’s Bachpan Bachao Andolan has moved to the apex court seeking clarity on this conflict. Read below, Dr. Pravin Patkar’s comments about the alleged lack of clarity.

News in The HINDU:

As IPC allows man to have sexual intercourse with 15-yr-old wife despite POCSO, SC seeks clarity from govt.
by Krishnadas Rajagopal

NEW DELHI JANUARY 05, 2017 13:30 IST UPDATED: JANUARY 05, 2017 14:18 IST

A chink in the colonial era Indian Penal Code (IPC) allowing husbands to have sexual intercourse with his child-wife has led the Supreme Court to take up the issue with the Central government.

An exception to Section 375 in the IPC does not find a man guilty for having sexual intercourse with his 15-year-old ‘wife’. This exception ensures that he will not be charged for rape even though child marriage is a crime.

Nobel prize winner Kailash Satyarthi, through his organisation Bachpan Bachao Andolan, appealed to the Supreme Court on Thursday for help to end this “statutorily-backed” crime against children.

In a petition before a Bench led by Chief Justice of India J.S. Khehar, the organisation highlighted the conflict between the IPC and the Protection of Children from Sexual Offences (POCSO) Act of 2012.

The POCSO Act defines ‘children’ as those aged below 18. It has specific provisions declaring that ‘penetrative sexual assault’ and ‘aggressive penetrative sexual assault’ against children below 18 is rape.

Mr. Satyarthi wants the apex court to clear the conflict between the IPC – which terms children as those aged under 15 years – and POCSO – which terms children as those aged under 18.

The apex court has directed the government to address the issue within four months. If not satisfied with the government’s response, the Bench asked Mr. Satyarthi to approach the Supreme Court on the same grounds for immediate resolution.

Dr. Pravin Patkar’s comments:

There should not be any confusion as regards whether sexual intercourse with one’s wife who is between 15 and 18 years is an offence under POCSO or not. Similarly, there is no reason to believe that there is any lack of clarity as regards the provision on sexual acts in the two laws POCSO and IPC.

Intercourse with a woman between 15 and 18 years was an offence under the original (i.e. prior to the 2013 amendment) POCSO Act 2012. It continues to be an offence up to this date i.e. even after the amendment in POCSO.

It was not an offence of rape under the IPC (Sec 375) or any other law e. g. see what the IPC old Sec 375 Exception states: -‘Sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape’. However it is also not an offence of rape under the IPC even after the Criminal Law Amendment Act 2013. The Criminal Law Amendment Act 2013 came into force on 3rd Feb 2013. (although the Amendment Act was passed on 2nd April 2013 the Ordinance was effective from an earlier date.)

Exception 2 of Sec 375 of IPC (as per the 2013 amendment) states – ‘Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.’

Don’t miss the added word ‘sexual acts’ which besides penetrative sex also exempts the husband from the culpability for what POCSO considers as non-penetrative sexual offences.

It was an offence under the POCSO Act 2012 prior to the Criminal Law Amendment 2013. And hence there was a likelihood of conflict with respect to an offence under POCSO and it being not an offence under the IPC.

There were two reasons for a likely conflict. The amendment in IPC (effected through the Criminal Law Amendment Act 2013) would have been exempted from the overriding effect of POCSO as being new and introduced after POCSO-2012 it would not have met the condition … ‘notwithstanding anything contained in any law for the time being in force …..’.

In the pre-2013 criminal law amendment scenario would POCSO have overridden the IPC section 375 when it came to sex with one’s wife between the age of 15 and 18 years?

The answer is negative since the old POCSO did not have a blanket overriding provision. It’s overriding effect was limited to the POCSO offences which were also offences in any other law besides POCSO (e.g. IPC).

Let us see what the original (i.e. prior to 2013amendment) POCSO says about which law to follow?

POCSO Sec 42.Where an act or omission constitutes an offence punishable under this Act and also under any other law for the time being in force, then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment only under such law or this Act as provides for punishment which is greater in degree.

(The original POSCO did not have Sec 42A. It was introduced only by the Criminal Law Amendment Act 2013)

It is reasonable to believe that since POSCO came into effect in 2012 it should have had an overriding effect and hence sexual intercourse with one’s wife of age between 15 and 18 should have been considered as an offence. But careful reading of Sec 42 of the original POCSO Act shows that it applies only to such cases which are offences in POCSO as well as in any other law (here the IPC). But since sex with one’s wife between 15 and 18 years of age was not an offence under the IPC Sec 375 prior to the Criminal Law Amendment Act 2012 the overriding effect of POCSO did not apply there. Which means the provision of IPC Sec 375 Exception (2) could not be overridden by the old POCSO Act.

In response to this situation the POCSO Act 2012 was amended in 2013 vide Sec 29 of Criminal Law Amendment Act 2013. The old Sec 42 of POCSO -2012 was substituted by a new Sec 42 which reads as follows;

Amended Sec 42 of POCSO — Where an act or omission constitutes an offence punishable under this Act and also under Sections 166A, 354A, 354B, 354C,354D,370, 370A, 375, 376, 376A,376C,376D, 376E or section 509 of the Indian Penal Code, then notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree.

This provision does not equip POCSO to fully override the IPC Sec 375 as the new Sec 42 only applies to offences which are offences in POCSO as well as in any other law in force. Since under the IPC amended in 2013 too, sex with one’s wife between 15 and 18 years of age was not an offence POCSO could not override merely with the power of the newly substituted Sec 42.

The Criminal Law Amendment 2013 foresaw the conflict and made provisions to resolve such a situation. For this purpose Sec 42A was added to POCSO through the Criminal Law Amendment Act 2013. The newly added POCSO Sec 42-A reads as follows;

42-A. – ‘The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of the inconsistency.’

Sec 42A is very clear. It does not speak only about the offences common in two or more Acts one of them being POCSO. It speaks about ‘any inconsistency’. There could have been one more problem. Since the Criminal Law Amendment Act 2013came into effect in Feb 2013 and since the amendment in Sec 375 of IPC (dealing with rape) was a major part of it and since the above mentioned amendment in POCSO was also a part of it one may wonder as to -Who would have the overriding effect? In my understanding that really is not an issue for the simple reason that the Amendments made in IPC through the Criminal Law Amendment Act 2013 do not enjoy any overriding provisions. The overriding power is given only for the amended POCSO Act. Hence there need not be any lack of clarity.

Had Sec 42-A not been added then the new provisions of IPC on rape through the Amendment Act 2013 being not in existence at the time of promulgation of POCSO but having come into existence after POCSO 2012 would have prevailed over POCSO and POCSO would not have overridden them.

As per the ‘Exception’ made under Sec 375 of the amended IPC a husband is exempted from the culpability for penetrative sex as well as other sexual acts with his wife between 15 and 18 years of age (the term covers the non penetrative sexual offences as described in POCSO). Nonetheless, since 42-A empowers POCSO to override the IPC the husband remains guilty.

In addition, the Prohibition of Child Marriage Act-2006 also prohibits the marriage of a female below 18 years of age although it does not declare the marriage ipso facto null and void. But this position of law is for reasons other than for permitting sex with her.

Summing up, it can safely be said that sexual intercourse or any sexual act that is declared as an offence under POCSO, with one’s wife of age between 15 and 18 years is an offence punishable under POCSO 2012 regardless of what is stated in the amended IPC. The same with one’s wife below 15 years is certainly an offence about which no one has pointed out any conflict or lack of clarity in the current laws.

Of course, the patriarchal society would be desperate to get the IPC Sec 375 removed from the overriding power of POCSO. The child protection activists should use the POCSO provision with confidence.

Dr. Pravin Patkar – The author is the Co-Founder & Director of Prerana (India’s leading and pioneering anti-trafficking civil society organization, Retired Faculty TISS, Ex. Professor-Amrita University, ex Vice Chairperson ECPAT International, and Fulbright Scholar (Fulbright Nehru Academic and Professional Excellence Fellow 2015-2016, in residence at University of Rhode Island, USA).